West Kentucky Coal Company

National Labor Relations Board - Board Decisions

Dec 3, 1938

10 N.L.R.B. 88 (N.L.R.B. 1938)

In the Matter Of WEST KENTUCKY COAL COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT No. 23 Cases Nos. C-456 and R-615.-Decided December 3, 1938 Coal Mining Industry-Interference, Restraint, and Coercion: employment of "guards" to interfere with organizational activities ; circulation of petitions to be used as justification for intervention in organizational activities ; interference with organizational activities and surveillance of union meetings ; discrimination against non-employees for purpose of discouraging organizational activity ; de- motion of employees for union membership and activity ; threat to close certain mines unless organizational activities cease ; intimidation of union leaders, organ- izers, and members ; maintenance of guard towers for purpose of intimidating union organizers ; expressed opposition to labor organization ; engendering fear of loss of employment for union membership or activity; employer ordered to cease interfering with right of persons to enter towns or camps for purpose of giving aid, advice, and information to others concerning rights guaranteed by the Act-Company-Dominated Union: domination of and interference with for- mation and administration; support; circulation of allegiance cards, by "guards" and others, during working hours, with tacit assent of supervisory employees and officials; coercion to join; disestablished, as agency for collective bargain- ing-Check-Off: agreement for, with company-dominated union ; acquiescence in, not free choice of employees; employer ordered to cease use of, in behalf of company-dominated union ; employer ordered to reimburse employees, individu- ally and in full, for amounts deducted since July 5, 1935, from earnings as clues and assessments, if any, for company-dominated union-Con tract: employer ordered to cease giving effect to any contract it has or may have entered into with organization found to be company-dominated-Discrimination: as to tenure of employment : discharges, for union membership and activity ; transfer of employee to work not within his physical ability, held to constitute discharge ; demotion of employees for union membership and activity ; charges of, dismissed as to four persons-Reinstatement Ordered: discharged employees-Buck Pay awarded discharged employees: as to one such employee, not to include period between date of Intermediate Report and date of Decision-"Net Earnings": no deduction in computing : for expenses incurred in connection with obtaining regular and substantially equivalent employment elsewhere ; for amounts re- ceived from union-Investigation of Representatives: controversy concerning representation of employees; appropriate unit-Unit Appropriate for C.o'lective Bargaining: production employees, excluding supervisory employees and guards- Election Ordered: time to be set in future when effects of unfair labor practices have been dissipated ; name of union found to be company-dominated, omitted from ballot-Collective Bargaining: absolute refusal to meet with representatives ; employer's position one of wilful disregard for rights of employees ; obstructing union's efforts to bargain ; refusal to bargain • union's failure to disclose evidence of membership precludes finding of ; special form of remedial order : employer ordered to bargain collectively with union, upon request, and to recognize same as exclusive representative, provided union is selected in election later to be held by majority of employees voting therein, and is certified by Board as exclusive representative of all employees in appropriate unit. 10 N. L R. B., No. 10. 88 DECISIONS AND ORDERS 89 Mr. Herbert N. Shenkin, for the Board. Gordon cC Gordon cQ Moore, by Mr. M. K. Gordon, Mr. Neville Moore, and Mr. Abner Johnston, of Madisonville, Ky., for the re spondent. Fox & Gordon, by Mr. B. N. Gordon, of Madisonville, Ky., for the Union. Mr. Charles G. Franklin, of Madisonville, Ky., for the E. M. B. A. Mr. A. Bruce Hunt, Jr., of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges and amended charges duly filed by Ed. J. Morgan, president of United Mine Workers of America, District No. 23, herein called the Union, the National Labor Relations Board, herein called the Board, by Robert H. Cowdrill, Regional Director for the Eleventh Region (Indianapolis, Indiana) issued its complaint, dated December 2, 1937, against West Kentucky Coal Company, Sturgis, Kentucky, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accom- panied by notice of hearing, were duly served upon the respondent, the Union, and upon Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters, herein called the E. M. B. A., a labor organization alleged in the complaint to be dominated and supported by the respondent. With respect to the unfair labor practices, the complaint alleged in substance (a) that the respondent dominated and interfered with the administration of the E. M. B. A., and contributed financial and other support to it; (b) that on various dates during May, June, July, August, and November, 1937, the respondent discharged cer- tain employees, namely, Straudie Ratley, Albert Johnson, Alfred Arnold, Carroll Williams, Mark Thomas Jenkins, Charlie R. Hayes, James R. Stokes, and Miles H. Cannon, for the reason that they had joined and assisted the Union, thereby discriminating in regard to their hire and tenure of employment and discouraging member- ship in the Union; (c) that on July 27, 1937, and thereafter, the respondent refused to bargain collectively with the Union as the _90 NATIONAL LABOR RELATIONS BOARD representative of the production employees at the respondent's mines Nos. 2 and 8, although a majority of said employees had designated the Union their representative for the purpose of collective bargain- ing within units appropriate therefor; and (d) that by the afore- mentioned acts and each of them, and in various other ways, the respondent interfered with, restrained, and coerced its employees in -the exercise of the rights guaranteed in Section 7 of the Act. On December 7, 19379 the respondent filed a notion to dismiss the complaint for lack of jurisdiction and a motion to strike from the -complaint certain language which alleged that the respondent had dominated the E. M. B. A. prior to July 5, 1935, the effective date of the Act. On the same day the respondent also filed an answer to the complaint denying that its operations affect interstate commerce within the meaning of the Act and that it had engaged in or was 'engagi ng in the alleged unfair labor practices. On December 14, 1937, the E. M. B. A. filed with the Regional Di- rector a motion to intervene, stating that it was a labor organization composed of employees of the respondent, that it had bargained col- lectively with the respondent on behalf of its members who were production employees, and that ,,t contract governing wages, hours, and working conditions had been entered into between it and the respond- ent. The motion to intervene was granted by the Regional Director by an order dated December 14, 1937, which was duly served upon the parties. Pursuant to the notice, a hearing was held in Madisonville, Ken- tucky, on December 17, 18, 20, and 21, 1937, and January 4, 5, 6, 7, 8, -110, and 11, 1938, before David F. Smith, the Trial Examiner duly -designated by the Board. The Board, the respondent, the Union, and the E. M. B. A. were represented by counsel and participated in the hearing. Full opportunity to be, heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded to all parties. At the opening of the hearing, the respondent renewed its motions to dismiss and to strike, both of which were denied by the Trial Ex- aminer. His rulings thereon are hereby affirmed. At the same time the E. M. B. A. filed its answer, denying that it had been interfered with or dominated by the respondent since July 5, 1935, or that the respondent had contributed financial support to it since September .1935, and stating affirmatively that the E. M. B. A. was the duly -selected representative of its members for the purposes of collective bargaining with the respondent. During the course of the hearing, -counsel for the Board moved to amend the complaint to include the name of one additional employee, George Hughes, as having been dis- :eriminatorily discharged and thereafter reinstated. The respondent DECISIONS AND ORDERS 91 consented to this amendment, and it was agreed by the parties that the respondent could traverse the amended complaint without filing a formal answer. At the close of the Board's case, the Trial Examiner granted a motion by counsel for the Board to amend the complaint to conform to the evidence. His ruling is hereby affirmed. During the course of the hearing, the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has feviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 11, 1938, the last day of the hearing, the Union filed with the Regional Director a petition alleging that a question affect- ing commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. During the course of the hearing the parties entered into a stipulation which was -read into the record at the hearing and, on February 8, 1938, with slight additions, was reduced to writing and signed by all parties. The stipulation provides-(1) that all the evidence, both as to the juris- diction of the Board and as to the questions arising out of representa- tion of the employees, which all the parties wish to introduce with respect to the Union's petition, is contained in the record of the com- plaint proceeding, and (2) that all parties waive hearing on the peti- tion and request that the Board consider the record in the complaint proceeding for the purpose of determining all questions of representa- tion. Accordingly, on March 9, 1938, the Board, acting pursuant to Article III, Section 10 (c) (1), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the repre- sentation case based on the petition be transferred to the Board, and further ordered that it be consolidated with the complaint case. On February 28, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom and, affirmatively, that it withdraw recognition from and completely disestablish the E. M. B. A. as a collective bargaining agency for its employees, and that the respondent take certain other appropriate action, including the reinstatment with back pay of employees found to have been discrimi- natorily discharged, in order to remedy the situation brought about by the unfair labor practices. In addition, the Trial Examiner found that the respondent had not discriminatorily discharged Mark Thomas Jenkins, Albert Johnson, Alfred Arnold, Miles H. Cannon, and George Hughes, and had not refused to bargain collectively with the Union, 92 NATIONAL LABOR RELATIONS BOARD and recommended that the allegations of the complaint in respect thereto be dismissed. Thereafter the respondent filed exceptions to the Intermediate Report and the Union filed an exception to one recommendation therein. On May 9 and 10, 1938, the parties were notified that they had a right to apply for oral argument before the Board or permission to file briefs. Pursuant to notice, a hearing was held before the Board in Washington, D. C., on June 9, 1938, for the purpose of oral argu- ment. The respondent and the Union were represented by counsel and participated in the argument. The E. M. B. A. did not appear. Due to the crowded state of the Board's docket, argument was limited to one-half hour for each party. During the course thereof the re- spondent renewed a motion, which had previously been denied, that oral argument be held after the first Saturday in August 1938, and that such argument not be limited to one-half hour in duration for each party. The Board denied this motion and advised the respond- ent that it had a right to file briefs. At the oral argument the Board informed the respondent that the alleged discriminatory discharges of all the employees named in the complaint, as amended, were in issue, including those as to which the Trial Examiner recommended dis- missal in his Intermediate Report. The respondent's argument was confined principally to the question of jurisdiction. While denying the jurisdiction of the Board, counsel for the respondent admitted at the oral argument that it operates steam and tug boats on the Mis- sissippi River, a fact which was not developed at the hearing, before the Trial Examiner. By registered letter dated June 17, 1938, the parties were again ad- vised of their right to file briefs, and that the alleged discriminatory discharge of each employee named in the complaint, as amended, was a matter in issue, and, finally, that such briefs "must be filed with the Board in Washington, D. C., within fifteen (15) days from the date hereof in order to be considered by the Board." On July 14, 1938, the respondent filed a brief, and on July 18, 1938, the Union filed its brief, both of which have been considered by the Board. The Board has considered the exceptions to the Intermediate Report and finds that the respondent's exceptions are without merit and that the Union's exception is well taken. Upon the entire record in the case, the Board makes the following : 'But see Matter of Clover Fork Coal Company and District 19, United Mine Workers of America, 4 N. L. R B. 202; enforcement order entered in Clover Fork Coal Company v. National Labor Relations Board , 97 Fed. ( 2d) 331 , ( C C A 6th; 1938 ) See also Mat- ter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N. L. R. B. 455 ; enforcement order entered in National Labor Relations Board v. Kentucky Firebrick Company 99 Fed. (2d) 89, (C. C. A. 6th; 1938). DECISIONS AND ORDERS FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 93 The respondent is a New Jersey corporati0112 engaged in the busi- ness of mining and selling coal. The North American Company owns the capital stock of the respondent and the latter owns the capital stock of the following corporations : West Kentucky Coal Company (of Delaware), Peoples Coal Company, Overton-Williams- Pinner Company, St. Bernard Coal Company, and West Kentucky Property Company. The respondent owns extensive coal lands in western Kentucky, some of which are undeveloped. At the present time the respond- ent operates eight mines. Mines Nos. 2 and 8 are operated in Union County; mines Nos. 3, 6, and 10 in Webster County; and North Diamond, Fox Run, and Coil mines, the last named being also known as Kentucky Block No. 2, in Hopkins County.3 In the operation of its mines the respondent annually purchases approximately $300,000 worth of various supplies and equipment, principally tim- bers, props, ventilation equipment, oil, mining machinery parts, powder, and steel rails. About 80 per cent of these materials are shipped to the respondent from points outside Kentucky. For the past 4 years the respondent has obtained in excess of 2,000,000 tons of coal annually from the mines specified above. Of this tonnage 59 per cent was shipped to points outside the State of Kentucky. Thd respondent sells its coal f. o. b. the mines, and dur- ing the year 1937 its out-of-State shipments were principally to Illinois, Indiana, Wisconsin, Iowa, Tennessee, Missouri, Louisiana, and Mississippi. All mines specified above are connected by switch tracks with the Illinois Central Railroad, and the North Diamond and Coil mines are connected similarly with the Louisville & Nash- ville Railroad. Both of these railroads are interstate carriers and are among the respondent's customers, the former purchasing approximately 200,000 tons of coal annually and the latter about, 100,000 tons. In connection with its mines the respondent owns and operates a rescreening plant at Sturgis, Kentucky, one-half mile from No. 2 mine, 10 miles of railroad, three locomotives, an undetermined num- ber of railroad cars, and a car shop. The respondent also owns 2 Incorrectly referred to in the complaint as a Kentucky corporation. The error was corrected by amendment at the hearing. 9 See Matter of Clover Fork Coal Company , supra, footnote 1, for extensive findings made by the Board of the position occupied by labor in the mining of coal in the competitive coal fields of Kentucky and of the effect of labor disturbances therein upon the distribu- tion of such coal through the channels of interstate commerce. 94 NATIONAL LABOR RELATIONS BOARD approximately 1,300 houses , which it rents to its employees, and owns and operates several stores wherein are sold groceries, clothing, furniture, drugs, and other articles. The respondent has between 2,300 and 2 ,400 employees. The respondent itself or by its subsidiaries operates yards for (lie retail sale of coal in Paducah and Louisville , Kentucky; Mem- phis and Nashville , Tennessee ; Evansville , Indiana; and Omaha, Nebraska. At these yards is sold coal mined by the respondent, as well as coal purchased by the respondent from other mining con- cerns. About 60,000 tons of coal annually are handled at the Mem- phis, Tennessee, yard, which is operated directly by the respondent.- In the Nashville, Tennessee, yard, operated by its subsidiary, St. Bernard Coal Company, are handled about 80,000 tons of coal an- nually, about 50,000 tons of which is mined by the respondent. At Evansville, Indiana, the yard is operated by another subsidiary, West Kentucky Coal Company (of Delaware), and handles large quantities of coal annually, about 25,000 tons of which is mined by the respondent. At Omaha, Nebraska, the yard is operated by a subsidiary, Peoples Coal Company, and handles approximately 15,000 tons of coal annually, about 3,000 tons of which is mined by the respondent. Coal sold in the above-named yards, other than that mined by the respondent, is purchased from concerns in Arkansas, Illinois, Indiana, Kentucky, West Virginia, Tennessee, and Alabama. At Paducah, Kentucky, on the banks of the Ohio River, the re- spondent operates a tipple, maintains a barge building, and employs a crew in connection with its transportation of coal on the Ohio River. Here the respondent employs about 65 persons and con- structs and maintains numerous tugs and from 150 to 200 barges for use in transporting its coal on the river. The barges are loaded at the tipple, to which point the coal is hauled from the mines over the respondent's railroad tracks in cars drawn by the respond- ent's locomotives . In this manner the respondent sends from 5,000 to 7,000 tons of coal each month, and on occasions has sent 12,000 tons a month, from its mines for shipment on the Ohio River. The respondent also operates steam and tug boats on the Mississippi River. II. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District No. 23, is a labor organization affiliated with the Committee for Industrial Organiza- tion; admitting to its membership employees of the respondent. Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters, is a labor organization, admitting to its membership per- sons employed in and around the respondent's mines. Although DECISIONS AND ORDERS 95, the constitution and bylaws of the E. M. B. A., as amended in 1934 and as presently in force, indicate that employees of mining con- cerns other than the respondent in the Western Kentucky Coal Dis- trict are eligible to its membership, its members, other than check- weighmen who are employed by the respondent's production employees, are all employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters C. F. Richardson, president of the respondent since 1916, estab- lished the E. M. B. A., St. Bernard and Wesko Chapters, at the respondent's mining properties on September 1, 1918. Richardson testified, "I studied out, got some information to find out what would be the best plan which would do the most for the employes of the company and give them collective bargaining, give them a voice in all of the operation of the mines and the plan of the Employees [sic] Mutual Benefit Association was adopted." At that time the Employes' Mutual Benefit Association was already in exist- ence as a Wisconsin corporation and functioned as a labor organi- zation representing employees of subsidiaries, other than the re- spondent, of the North American Company. The chapters of the: E. M. B. A. at the respondent's mines, of which there were three- at one time, were established by having the Wisconsin corporation issue a charter to them.' The St. Bernard Chapter has as its mem- bers employees at the North Diamond, Fox Run, and Coil mines.- The Wesko Chapter has as its members employees at mines Nos. 2;. 3, 6, 8, and 10, and employees in Paducah, Kentucky. Each chapter- is divided into districts or locals, one local representing each mine. From its establishment in 1918 until 1933, the E. M. B. A. purport- edly was governed by a council of seven men, four of whom were representatives of the employees and three of whom were representa- tives of the respondent. The highest official in the organization is O. H. Wilcox. He had worked for the respondent from February 1912 to August 1920, as one of the office force and at other jobs. On No- vember 1, 1921, he was appointed secretary-treasurer by the E. M. B. A. council and has held that position continuously up to the time of the hearing. Wilcox's salary has increased from $175 to $240 per month. The E. M. B. A. also has a "Pit Committee," whose function is to assist E. M. B. A. members in effecting the settlement of grievances. 4 References in this Decision to the E M B A aie to the organization as it exists at the respondent 's properties , and not to the corporation , unless the contrary specifically appears from the language used. 96 NATIONAL LABOR RELATIONS BOARD Practically all employees of the respondent are members of the E. M. B. A. because it has been understood clearly by all of them that such membership is a prerequisite to permanent employment with the respondent. An average of 125 employees have not been members because the E. M. B. A. has not been able to contact new employees immediately after they were hired. Physicians employed by the re- spondent give physical examinations to new employees and inform Wilcox of the names of such employees. Wilcox testified that it is merely a matter of time until he will have seen such employees and they will have become members of the E. M. B. A.5 Continuously from the inception of the E. M. B. A., contracts have existed between it and the respondent which purportedly have gov- erned wages, hours, and working conditions. In making these con- tracts the employees are represented by the E. M. B. A. council. Fur- ther, the check-off system for the payment of dues to the E. M. B. A. has been continuously in force. Under this system the respondent has deducted monthly dues from the wages of the members at the rate of 75 cents for an unmarried member and a dollar for a married mem- ber. Although Wilcox asserted that this system was approved by the members, the convincing evidence is to the contrary. Until about June 1936, the deduction of these dues was shown as "Doctor Fee" on the pay-roll statements furnished to each employee. By this device the respondent desired that its employees believe that the deductions were being used to employ physicians and not as dues to support the E. M. B. A. This conclusion is supported by the fact that a sign reading "No dues in the E. M. B. A." was recently removed from an office at one of the respondent's mines, and the fact that since June 1936 the deductions have been shown on the statements furnished to the employ- ees as "E. M. B. A. Fee." By means of this check-off system the respondent deducted from the wages of E. M. B. A. members approxi- mately $2,200 per month which it turned over to the E. M. B. A. Under its arrangement with the E. M. B. A., as provided in the E. M. B. A. constitution until amended in 1933, the respondent con- tributed a like amount, "dollar for dollar," which contributions con- tinued through September 1935, when the E. M. B. A. had assets worth $100,000. The contributions made by the respondent, being exactly the amount which the employees were required to pay to the E. M. B. A., entitled the respondent to an equal voice in its affairs. At the time of the hearing the E. M. B. A. had assets worth $135,000. The respondent continued to make its "dollar for dollar" 5A contract between the respondent and the E M. B A, dated June 18, 1924, and expiring upon 6 months' notice of termination given by either party, provided : "1. The Company agrees to hereafter employ only those applicants for positions who indicate their willingness to become members of the Association , and the Company shall undertake to secure application for membership in the Association from all persons hereinafter employed by it . . ." This contract terminated before the effective date of the Act. DECISIONS AND ORDERS 97 contributions until September 1935, after the effective date of the Act. Thereafter it ceased making these contributions, but this did not result in any loss of income to the E. M. B. A. Prior to September 1935, the E. M. B. A. employed several physicians to afford medical aid to its members. The salaries paid to these physicians by the E. M. B. A. approximated the amounts contributed by the respondent. Upon the cessation of its contributions, the respondent transferred the physicians from the E. M. B. A. pay roll to its own pay roll. The respondent has a pension plan and until recently the pension checks to the retired employees were distributed through the E. M. B. A.° The E4 M. B. A. has a health and death-benefit fund and engages in some social activities. Until 1936 the E. M. B. A. numbered among its members super- visory employees and officials of the respondent. Such individuals regularly attended E. M. B. A. meetings, local and chapter, and participated in the discussions. Richardson, president of the respondent, attended the meetings. He testified that the principal matters discussed were the production of coal which could be sold in a competitive market and the marketing of such coal. Safety matters also were discussed. These meetings were notably free of discussion concerning wages, hours, and working conditions. Wilcox testified that the contract, apparently in recent years entered into annually between the respondent and the E. M. B. A., could be effective only after ratification' by members of the various locals and, if any local failed to ratify it, would be ineffective as to that local. The contract now in effect, which provides for the check- off, purports to have been ratified. It does not appear that the membership of any local ever failed to ratify any of the contracts. Rather, the testimony of E. M. B. A. members shows that they never heard the subject of a contract discussed. Many members appeared as witnesses and few of them knew anything of a contract. In fact, one witness, an employee of the respondent until 1932, who was at one time vice president of the Fox Run Local and thereafter for 4 or 5 years its president, testified that the matter of a contract was not discussed at the meetings, that he knew nothing of the' contracts, had nothing to do with negotiating them, and never saw them. Manifestly, the E. M. B. A. at its inception was not intended to be an effective representative of the employees. It was created, main- tained, and allowed to operate by and under the domination of the respondent. Contrary to the many statements of its members, called by the E. M. B. A. as witnesses, that it is now the same sort of organization which they have long known it to be, the respondent and Wilcox assert that various changes which they made in the rela- e An E. M B. A. pamphlet for the years 1929-30, indicates that an employee is not entitled to iecei^e beneht^ under this pension plan unless he is a member. 198 NATIONAL LABOR RELATIONS BOARD tionship between the respondent and the E. M. B. A. subsequent to 1933 have made the E. Al. B. A. the free representative of the re- spondent's employees which the Act contemplates. Richardson, after asserting that- his ideas on collective bargaining had -remained con- stant for 40 years, continued : We were living up to the law as far as we knew. As soon as the NRA was put into effect we made some little small changes to meet that condition, to comply with the law and when the Wagner act was passed we made changes and complied with the law we thought. One of the first changes effected in order to "comply with the law" was to remove the three employer representatives from the council. %X- mitting that there was "a certain amount of influence" brought .upon the employees by reason of the presence of the employer repre- sentatives on the council, Wilcox stated that these representatives -resigned on October 7, 1933, and that the constitution of the E. M. B. A. was amended on December 13, 1933, to eliminate em- ployer representatives from the council. Another change was that relating to the respondent's "dollar for dollar" contributions to the E. M. B. A. Since the E. M. B. A. constitution provided for such contributions by the respondent, it was deemed advisable by the re- spondent and Wilcox to amend it. Accordingly, amendments re- leasing the respondent from this obligation were enacted in Decem- ber 1933 and March 1934, but the contributions nevertheless were continued through September 1935. Wilcox testified that he did not know why the respondent ceased making the contributions as of September 1935, but that "I know that as long as I could get my hand on the money I took it." It is asserted that the contributions after July 1935 would not have been received by the E. Al. B. A. if it had known that they were being made in contravention of the Act. However, there is no indication in the record that the E. M. B. A. ever returned to the respondent the contributions received -after the effective date of the Act. As before related, simultaneously with the cessation of its contributions, the respondent commenced employing the physicians formerly employed by the E. M. B. A., -the expense being the same. No one can be critical of an employer's -sincere interest in the health of his employees, or of the respondent's -employing physicians to safeguard the health of all its employees. - However, it is clear that the employees have not been advised of the changes now being discussed, nor does it appear that even now they know the E. M. B. A. no longer employs the physicians. Another change was in the method of showing E. M. B. A. monthly check-off deductions on the pay-roll statements furnished by the re- :.spondent to the members. About June 1936 and, thereafter they DECISIONS AND ORDERS 99 were shown as "E. M. B. A. Fee." Prior thereto they were shown as "Doctor Fee." Still another change effected was the withdrawal of the respond- ent's officials and supervisory employees from membership in the -E. Al. B. A.- As related by Richardson : "When the Wagner act was passed it seemed to us that we could not belong to the E. M. B. A. There might be some question about it . . ." Accordingly, such officials and employees either withdrew their membership or their membership was revoked. However, T. F. Christian, general super- intendent of the respondent since 1918 and in charge of operation of the mines, retained his membership until sometime in 1937. A further change intended to Have been made during the summer of 1937 was that the respondent would thereafter distribute the pen- sion checks to its retired employees in some manner other than through the E. M. B. A. According to the respondent, the pension checks were distributed through the E. M. B. A. as a matter of con- venience to the retired employees. In any event the practice helped to create among the employees a belief that the pension system was the E. M. B. A.'s, rather than the respondent's. Distribution of the pension checks by the E. Al. B. A. had not ceased entirely by Decem- ber 1937, the date of the hearing. The alterations in the respondent-E. M. B. A. relationship became numerically large and in explaining why they extended over a long period of time, Wilcox testified, "We couldn't think of all that at once. We had to do it as we could think of it, as we ran into it." Another such change was that involving a contract with the Welborn Hospital Clinic, located in Evansville, Indiana, a city across the Ohio River and near the three counties in which the respondent's mines are located. On May 1, 1937, the Clinic and the respondent entered into a contract under the terms of which the Clinic agreed to afford hospitalization and medical treatment to employees, and the.respondent agreed to deduct a stipulated amount from the wages of any employee caring to avail himself of the services offered, which amount was to be turned over to the Clinic by the respondent. A contract had existed between the Clinic and the E. M. B. A. prior to the. execution of the contract of May 1, 1937. Wilcox explained the previous contract as one which existed between the Clinic and the "E. M. B. A. Hospital Association," an association formed in 1925 by E. M. B. A. members. Wilco 'stated that the "E. M. B. A. proper" was not a party to the contract,' that he had little to do with it, that it was signed by T. E. Jenkins, the respondent's vice president, as ex-officio chairman of the Hospital Association and as - ' A copy of the contract'in'existence from 1929-30 shows that the "E \I B A proper" , was a party to it at that time. 100 NATIONAL LABOR RELATIONS BOARD an officer of the respondent, and that it was entirely separate from the E. M. B. A. sick benefits. Wilcox further testified: They were afraid it would be misconstrued by people who would think that the company and the E: M. B. A. had some kind of alignment in perfecting this hospital arrangement; so the com- pany made the contract itself and the E. M. B. A. Hospital Association was dissolved. The dissolution took place at about the tune the contract of May 1, 1937, was entered into. President Richardson testified that about 98 per cent of the employees were beneficiaries under the agreement. A considerable portion of the assets of the E. M. B. A. is invested in real property. Its principal realty holdings are two buildings, one located in Sturgis, Union County, and the other in Earlington, Hopkins County. The situation involving the building in Sturgis is a striking illustration of the respondent's interest in the financial affairs of the E. M. B. A. In December 1928, the E. M. B. A. entered into a contract with the West Kentucky Property Company, a sub- sidiary of the respondent, under the terms of Which the Property Company erected a building in Sturgis on land owned by it, the building being erected with money loaned to the Property Company by the E. M. B. A. This loan totaled $68,000, as evidenced by three interest-bearing notes, and was secured by a mortgage of July 1, 1929, on the property. After its erection, the E. M. B. A. took possession of the building under a lease from the Property Company, the rental cost being approximately the same as the amount of interest payable by the Property Company under the terms of the mortgage. During the summer of 1937, the parties decided to cancel the loan and have the property conveyed to Wilcox as trustee for the E. Al. B. A. Such a transaction was completed by the execution of various instruments, dated during June and July 1937. Concerning this transaction Wilcox explained that "we did not want something to happen that would jeopardize our position" since it could be construed that "'the company might be mixed up in the building somewhere." The Earlington building was erected in 1937 by the respondent pursuant to a contract dated June 19, 1937, between the respondent, as the "Contractor," and the E. M. B. A., as the "Owner." This contract provided that the E. M. B. A. should pay to the respondent as the consideration "the actual net cost to Contractor of the per- formance of the work herein provided, plus Two (2%) percent thereof for Contractor's fee." It is asserted that the E. M. B. A. wished to avail itself of the architectural and engineering facilities of the respondent. Wilcox testified that no bids were obtained on the proposed structure from any contractor other than the respond- ent and that at the time of the hearing approximately $41,000 had DECISIONS AND ORDERS 101 been paid by the E. Al. B. A. under the terms of the contract. - At that time a balance of approximately $1,800 remained unpaid. The contract shows clearly that all forms of financial contribution by the respondent to the E. Al. B. A. had not ceased in 1937. Specifically enumerated therein are various items for which the E. M. B. A. covenanted to pay, inter alia: (k) Any and all other expenses directly incurred or paid by Contractor in performance of the work, except it shall not include any charge for general engineering, construction and purchasing skill, service of executive officers, managers and other employees in its general office, nor any general overhead ex- penses, office supplies, postage, or local telephone service. [Ital- ics supplied.] In addition to the two buildings above described, there are vari- ous other buildings in the vicinity of the respondent' s mines and at Paducah which are used by the E. Al. B. A. as meeting places for members of the various locals. These buildings, most of which are schoolhouses, are owned by the respondent and the use of them by the E. Al. B. A. is authorized by a number of leases which provide for stipulated monthly rentals. The use of these schoolhouses as places for instruction of children will be referred to in Section III (B), hereinafter. Their use by the E. Al. B. A. does not of itself prove an unlawful alliance between it and the respondent, and is mentioned only to illustrate further the set-up of the E. M. B. A. The contention of the respondent and Wilcox that the above- described alterations have served to transform the E. Al. B. A. into the free representative of the employees which the Act contemplates is manifestly without merit under the circumstances of this case. Those alterations were intended only to create an appearance that the E. Al. B. A. had become liberated from the respondent's domi- nation and support, while in fact such domination and support con- tinued unabated. The respondent intended to sever only its out- ward connections with the E. Al. B. A., and it is clear that the em- ployees were made to feel that they were not free to exercise the rights guaranteed to them by the Act. Certain alterations which were clearly essential in any attempt to liberate the E. Al. B. A. from the respondent's domination were not made. Thus, the manner in which E. M. B. A. elections were conducted was not altered. We have decided on other occasions that the holding of a labor organi- zation's elections on "company time," without loss of pay to the par- ticipating employees, is, in certain instances, proof that the organi- zation is the recipient of unlawful support from the employer." The sMatter of Electric Boat Company and Industrial Union of Marine and Shipbuilding Workers of America, Local No 6, 7 N L R. B 572 147841-39-vol 10-8 102 NATIONAL LABOR RELATIONS BOARD manner in which E. M. B. A. elections are conducted at the respond- ent's mines has continued unaltered after the effective date of the Act and shows clearly the nature of the respondent's interest in them. Two E. M. B. A. elections are held each year, a primary during the last half of September, in which candidates for the council and the "Pit Committee" are nominated , and a general election during the first half of October, in which elections to the council and com- mittee take place. The elections are under the supervision of Wil- cox and an election commission appointed by the council. Employ- ees are designated to carry ballots and ballot boxes or buckets in, around, and through the mines while other employees are working. The-employees take time off from work, without loss of pay, to" vote. At the conclusion of the balloting, the votes are counted, generally by the employees who carry the ballots, in Wilcox' s office, in the mines or in a boiler room. Permission to conduct the elections in this manner was not asked of the respondent , according to Wilcox. He testified that he simply put into practice the system now used and that no supervisory employee or official of the respondent ever ob- jected.9 It is asserted that the employees who carried the ballots were paid for that day's work by the E. M. B. A. These employees never had to explain to their foremen why they were not at their usual tasks and they never encountered any objection as they dis- tributed and collected ballots. This system of balloting was used in 1937. Both prior to the effective date of the Act and thereafter tip to the present time, the respondent has utilized the E. M. B. A. as its chief instrument in its open and determined resistance to organization of its mine employees by the Union. By the simple expedient of trans- ferring certain of its employees, equipped with firearms, to the pay roll of the E. M. B. A. as organizers, the respondent brings pressure upon its employees to renew allegiance to the E. M. B. A. during times of organizational activity by the Union. Employees so trans- ferred and certain other employees, are called "guards" by the pro- duction employees. The production employees well realize that any outward sign of faltering allegiance to the E. M. B. A, immediately places their jobs in jeopardy, and many of them live in fear of their employer's wrath if they associate with organizers for the Union or otherwise create the impression that they are interested in genuine collective bargaining. In particular, they fear the activities of the `guards," as will more fully appear in a detailed discussion of the "guards" in Section III (B), hereinafter. These individuals, about 9 The contract described in footnote 5. sepia, contains the following provision "4 The Company undeitakes, with respect to wages and working conditions, to do the follow- ing . (c) Arrange for election, by members of the Association, at each mine or department of a Mine or Depaitment Adjustment Committee of three members, whose di,ties shall be . . DECISIONS AND ORDERS 103 four or morein number, are members of the E. M. B. A. It appears .that some are constables or officers. During the summer'of 1937, Wil- cox heard that the Union wa's successfully organizing the employees .at mines Nos. 2 and 8, and decided that activity in behalf of the -1 . M. B. A. should be commenced. Accordingly, Clemens Omers, a town constable and a weighman for the respondent, was transferred .to the pay roll of the E. M. B. A. to engage in organizational activity in behalf of the E. M. B. A. and to prevent such activity by organ- izers for the Union. Another employee, Charlie Mansfield, appar- ently was transferred similarly, but at the time of the hearing he was again working for the respondent. In the cases of other guards, the respondent did not even bother to transfer them to the E. M. B. A. pay roll. Since they were all members of the E. M. B. A., it is asserted that they had a right to engage in activity for it. However, the evidence clearly establishes that they were acting in behalf of the respondent and at its behest. During June and July 1937, employees were required by the re- spondent to sign cards designating the E. M. B. A. as their collective bargaining representative and revoking any such prior designation of any other labor organization. The majority of these cards were signed in 4 or 5 days during which they were circulated in and around the mines by various persons including Dr. B. F. Humphrey, one of "the physicians employed by the respondent, Elmer Beanie, pay- master at the Fox Run mine and a guard, and Wilcox, Mansfield, and - Omers. Various supervisory employees of the respondent assisted by sending employees to Lander Chisholm, mayor of the city of Earlington and principal officer of the E. M. B. A. in that city, and to Wilcox. Further, the cards were circulated frequently in the presence of supervisory employees during working hours, and no ob- . jection was raised. By these and various other means, as will appear more fully hereinafter, the respondent's control over and use of the E. M. B. A. continues without substantial abatement. At the hearing, it was stipulated by the parties that the employees at mines Nos. 2 and 8, if called as witnesses, would testify that they were production employees during the year 1937, that without coer- cion they had designated the E. M. B. A. as their collective bargain- ing representative, and that they had signed E. M. B. A. cards vol- untarily. In view of the facts in this case, such testimony does not show that the E. M. B. A. was ever free of the respondent's domina- tion and support. Moreover, the E. M. B. A. has been branded in the minds of the employees as a creature of the respondent, and such testimony does not tend to show that the E. M. B. A. is capable of ever being the free representative of employees which the Act con- templates. 104 NATIONAL LABOR RELATIONS BOARD The E. M. B. A. was commenced as a company-dominated labor organization: Its sick and death benefits and its social activities may be of advantage to its members, but as a representative for effective collective bargaining it began and has continued impotent. Wilcox obtained his position with approval of the respondent. Simi- larly, he continues to hold it, although the respondent no longer has its three representatives on the E. M. B. A. council. Never since the inception of the E. M. B. A. have the employees been per- mitted to vote upon whether they desire it as their representative for the purposes of collective bargaining. Foisted upon them without their consent, they were required to, assist the respondent in support- ing it. Notwithstanding the social or health benefits which they may have derived from it, the facts remain that the employees were allowed no choice and that the right to work for the respondent has been dependent in part upon support of the E. M. B. A. The respondent has contributed financial and other support to the E. M. B. A. since the effective date of the Act, has continued its interest in E. M. B. A. elections, affairs and financial matters, and has never permitted the employees any voice in the control and ad- ministration of that organization. The E. M. B. A. is maintained by the respondent today as its most effective means of combating the Union and frustrating its employees in the exercise of their rights to self-organization. The acts of Wilcox, to be discussed further below, stamp him as a tool of the respondent and not as a genuine representative of the employees. The alterations in the re- spondent-E. M. B. A. relationship were effected by the respondent and Wilcox without regard to the right of the employees to choose their own collective bargaining representative. The employees have always considered the E. M. B. A. as the creature of the respondent, consistently maintained by it irrespective of their wishes. We can arrive at no other conclusion respecting the various alterations than that they were not designed by the respondent and Wilcox as a means of liberating the E. M. B. A. from the respondent's domina- tion and support, and had no such effect. The part played by the E. M. B. A. in the respondent's efforts to resist the activities of the Union, as discussed below in Section III (B) and (C), reinforces our conclusion. We find that the respondent since July 5, 1935, has dominated and interfered with the administration of the E. M. B. A.r has contributed financial and other support to it, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Interference, restraint, and coercion After an unsuccessful effort to organize the employees at the re- spondent's mines in 1933 and 1934, the Union ceased its activity until DECISIONS AND ORDERS 105 April or May 1937 when it renewed its organizational activity among the respondent's employees. The respondent opposed the Union's activity by a series of acts designed to coerce and restrain its em- ployees in the exercise of their rights under the Act. President Richardson testified that because of the Union's alleged past unlaw- ful acts, his motto in dealing with it was "Might was right." He also stated that "we had a good deal of discomfort from the fact of the large number of organizers they had around there and keeping the men very much disturbed." Working hand in hand with the E. M. B. A. in obtaining signa- tures to the cards reaffirming allegiance to the E. M. B. A., as de- scribed above, and in numerous other ways endeavoring to prevent the progress of the Union, were the guards. Richardson contended that the guards who were employed by the respondent were necessary in order to protect its property. While this may be true to some extent, the principal activity of the guards was to interfere with the employees in the exercise of the rights guaranteed by the Act, by coercing them into joining or remaining members of the E. M. B. A., and by preventing their joining the Union or associating with its or- ganizers. The approximately 1,300 houses owned by the respondent, in which many of the employees and their families live, are located in camps. These camps, situated near the mines, have thoroughfares and re- semble small communities. In the camps "there are schoolhouses and stores owned by the respondent. At these camps are "guides" or "watchmen," other terms applied to the "guards," who, in the lan- guage of Richardson, "escorted" visitors "to the man's home and the property was posted and after they had completed their business, if they did not get off the property they were informed that that was private property and they will have no difficulty about them leav- ing." 11 These guides were employed as such generally when organi- zational activity by the Union was current. The duties of the guides were made clear by President Richardson, who further testified : Q. So that this property where these miners live was private property? A. Yes, Sir. Q. And the general public had no right there unless they were escorted by guides? A. We used that privilege. Q. That was applicable not only to union organizers but it was applicable to the public? A. Anybody. 10Cf Matter of Harlan Fuel Company and United Mine Workers of America, District 19, 8 N. L R. B. 25. 106 NATIONAL LABOR RELATIONS BOARD Q. Including governmental officials? A. If they came there, unless they are with any credentials that give them the right to enter, why, they get along. Q. But accompanied by a guide? A. Yes, Sir. Trial- Examiner SMITH. When you say accompanied by a guide are you speaking of all times or just special occasions when there is labor trouble out here? The WITNESS. Usually special occasions, yes. For some months prior to April 1937 no guards were stationed at the camps. After the Union renewed its organizational activity, its organizers and an agent of the Board were regularly followed by Clemens Omers, a town constable and employee of the respondent who was transferred at that time from the respondent's pay roll to the pay roll of the E. M. B. A., and by others, when they visited the camps. The Board's agent, Theodore H. Freter, was sent to the camps to in- vestigate the charges filed by the Union in the instant case. Many of his investigative efforts were rendered ineffectual by the presence of Omers because the employees refused to talk in Omers' presence. The employees stationed themselves behind trees, in houses, and at other vantage points, peeking at Freter, "acting as though they wanted to see without being seen." Omers' activities were also conducted else- where than at the camps. He followed Freter and the Union or- ganizers wherever they went in or near the camps. Union organizers had similar experiences with Omers and other guards. The evidence leaves no doubt that the employees were afraid to be seen by the guards or supervisory employees in the presence of organizers or the Board's agent. None of the guards or guides was called by the respondent or the E. M. B. A. as a witness. We accept as true the uncontradicted testimony of Earl Suver, a Union organizer, that he was informed by Shoulders, another guard, that Shoulders was following him on in- structions from Omers, Superintendent Christian, and W. A. Jones, superintendent of the respondent's Sturgis mines, that is, mines Nos. 2 and 8. Suver was followed also by Mansfield, a guard. Both Mans- field and Shoulders were armed on these occasions. President Richardson testified that one reason for the use of guards was that the employees had petitioned the respondent for "protec- tion" from the organizational efforts of the Union organizers. The respondent denies knowledge of the petitions, except that they were presented to it. They bear the signatures of many- employees and members of their families. Saver testified that he inquired of the employees about the petitions and was informed that Omers had cir- culated them. We accept this testimony as true. Various employees DECISIONS AND ORDERS 107 testified that they signed the petitions, some of them asserting that they signed so that their wives would not be molested by the Union organizers while the employees were at work. However, no em- ployees testified to any instance of molestation. Some employees stated that their wives feared that they would be discharged if they joined the Union and, consequently, urged them to sign. The record does not reveal a single instance of an employee, actuated by dis- pleasure with the efforts of organizers, having told an organizer not to visit his home. One employee, a signer, testified that he would lie in the shade of a tree and watch organizers go to his home and talk to his wife. Nowhere in the record is there any evidence to substantiate the language used in several of the petitions that the employees "are being harassed, coerced, intimidated and continually worried and abused by men calling themselves C. I. O. organizers and we demand protection from this continual worry for ourselves and our families in and around our homes and the mines." Some of the petitions have different, but substantially similar, language. All are dated between May 29, 1937, and June 5, 1937. The petitions were all directed to the respondent and it does not appear that the proper county authorities were called upon to preserve the law and order requested in the peti- tions. We find that the petitions were circulated by the respondent for the purpose of creating a semblance of justification for its denial to employees of the rights guaranteed by Section 7 of the Act. The Union held advertised mass meetings at various places throughout the three counties in which the respondent's mines are located. These meetings were attended by guards and supervis-)ry employees of the respondent, in particular by Beanie, Mansfield, Omers, and Shoulders, Superintendents Christian and Jones, Ray Cobb, assistant general superintendent of the respondent's Earling- ton division, and H. B. Hinton, foreman at No. 2 mine. The pres- ence of these individuals at a meeting could have had no other con- sequence than to destroy its effectiveness. As we find in Section III C below, these individuals were particularly observant of the pro- duction employees who attended these mass meetings, and there- after committed acts intended to terminate all interest of such em- ployees in the Union. The presence of guards and supervisory em- ployees at these meetings, designed as it was to hinder organiza- tional activity, constitutes a denial to the respondent's employees of the rights guaranteed by Section 7 of the Act." The respondent's activities against the Union were not confined to members or to employees. Under Kentucky law, mine employees are empowered to hire a "check weighman," an individual who rep- "Matter of Clover Fork Coat Company, supra, footnote 1 108 NATIONAL LABOR RELATIONS BOARD resents them to ascertain that the coal mined by them is correctly weighed. Jack Campbell was a check weighman. His wife, Laura Campbell, was a school teacher in the town of Wheatcroft, Webster County. Laura Campbell taught children of the employees in a schoolhouse owned by the respondent. She was employed by the Board of Education, members of which were Gid Brantwood, a fore- man at No. 3 mine, and two persons named McGaw and Fortenberry. During the summer of 1937, Laura Campbell was informed by Fortenberry, superintendent of the Board of Education, that she would not be reemployed for the school year 1937-38. Jack Camp- bell called upon Brantwood, who told him that Superintendent Christian had so directed. Campbell also saw McGaw, and was advised to see Christian. The Campbells then saw Christian, who admitted having directed that she not be reemployed, saying, "Well, I am not going to sign up no seven or eight months in the year with my enemies when I know it." After assuring Laura Campbell that he had no complaints against her, Christian indicated that Campbell was the "enemy," saying, "What else would you call it when you are going around organizing?" A few days before his wife was notified that she would not be reemployed, Campbell had attended a Union mass meeting where he was seen by Christian and William G. Wilson, foreman at No. 10 mine. During his conversa- tion with Christian, Campbell assured Christian that he was not assisting the Union, and Christian agreed to investigate further. Later Christian advised Campbell that his wife would be allowed to teach. She was reappointed. Brantwood, an evasive and unconvincing witness, endeavored to contradict Campbell's testimony. Christian, as a witness, admitted having held up the appointment, but denied that Campbell's sup- posed Union activities were the cause. He asserted that he had heard reports that Laura Campbell was an inefficient teacher. The Trial Examiner did not believe Christian's explanation, and we re- gard it as untruthful also. Campbell, who reluctantly appeared as a witness, stated that he preferred not to testify if the truth could be obtained otherwise, and that he feared he might lose his job as a result of testifying. Although he is employed by the miners, and not by the respondent, he stated : "If you are not acting according, that is, with the plan or policy of the company officials, of course, they would take action there." The "policy of the company officials" as explained by Campbell, is that "-they advocates the E. M. B. A." That the respondent's opposition to the Union is known to and accepted by the employees, is manifest upon reading Campbell's explanation of his remarks to Christian when he was accused of organizing. Campbell testified : DECISIONS AND ORDERS 109 I stated that I didn't think that he was treating one right, that he shouldn 't go to work and take action on me until he thoroughly investigated and find out whether I was organizing or not, that I was taking the same stand he vas taking; that if somebody was going against his policies, that I would be sure that the individual was doing that before I would take action, and that is what I had against the stand that lie was taking. We find that the respondent held up Laura Campbell's appoint- ment for the purpose of discouraging membership in the Union and interfering with the rights of its employees to self-organization. While neither Jack nor Laura Campbell is an employee of the re- spondent, their work brings them in close association with the em- ployees . The respondent 's acts of discrimination directed against Jack and Laura Campbell because the former was seen at a Union meeting did discourage employees associated with them from en- gaging in Union activity, and was so intended by the respondent. Everett Cozart , an employee at No. 10 mine who lives in one of the camps, has been indebted to the respondent for years . He has not received cash on any pay day for over 2 years . On May 5, 1937 , Cozart joined the Union and became very active in its behalf , so much so that Wilcox threatened to expel him from membership in the E. M. B. A. On May 25, Cozart was employed in the car shop and was demoted to working on the picking table, a device over which the coal passes as employees remove foreign matter from it. This demotion caused a decrease of 24 cents per day in Cozart's earnings. The demo- tion is explained by the respondent as having resulted from decreased work in the car shop, in which Cozart had worked for about 2 months. This explanation would have some plausibility if the respondent had not committed other discriminatory acts against Cozart at about the same time. On May 14, after working hours , Cozart spoke to an employee named McElroy about the possibilities of the Union's winning an election directed by this Board to determine the employees' collective bargain- ing representative. McElroy, who "acted like it scared him to death," told Wilson, foreman, of his conversation with Cozart. In about half an hour thereafter Cozart received word that Superintendent Chris- tian wanted to see him at a respondent-owned store. Upon his arrival at the store, Cozart found Christian and Wilson waiting for him and lie was called to a room in the rear where,Christian questioned him about the conversation with McElroy. Reluctantly, Cozart explained. Christian , after telling Cozart that it was the latter's privilege to join the Union , stated: "Hell , there ain't no difference in the law now than what there has always been" and "you know we can close all of our 110 NATIONAL LABOR RELATIONS BOARD mines down but number 2 at Sturgis. They can furnish all the coal we need." Both Christian and Wilson belittled the Union. In ex- planation of the occurrence, Wilson testified that McElroy had stated to him that Cozart threatened to chase McElroy and others off a ridge on which they lived unless they voted "right" and that his and Chris- tian's conversation with Cozart took place in order to direct Cozart not to threaten the employees. The flaw in this attempted justification is found in McElroy's testimony. McElroy testified that Cozart came to him after the conversation with Christian and Wilson and then, in remonstrating with him for having told Wilson, made the threat. McElroy testified that no threat was made by Cozart in their first conversation. As stated above, Cozart was indebted to the respondent and had not received any wages in cash for a long period of time. In order to nbtain food for his family Cozart had to continue his credit purchases .at a respondent-owned grocery store. On May 25, the day of the demotion, Cozart's credit at the grocery store was decreased. From May 26 to 31, it was discontinued. On June 1 it was renewed at the figure to which it had been decreased on May 25. Cozart's credit at a respondent-owned drug store was also discontinued. Thereafter the Union contributed to his support. J. O. Anderson, manager of the l;rocery store, refused to allow Cozart's wife to use the store telephone in order to call elsewhere in her effort to obtain groceries, although the telephone is used by others. Finally, in September, the opportunity to purchase all the coal he needed on credit from the respondent was denied to Cozart, although granted to other employees more heavily indebted to it. Anderson, an evasive, falsifying witness, upon being admonished by the Trial Examiner to relate the truth, admitted that Cozart's credit had been discontinued. He professed not to know why lie had received orders to- discontinue it. Otha H. O'Bryant, mine clerk at No. 10 mine, reluctantly admitted that it was upon his orders that Anderson discontinued the credit. Despite O'Bryant's denial, we find that this discriminatory act against Cozart was carried out upon instructions from Christian. Albert Clifton Long began working for the respondent about 1924. On June 24, 1937, he joined the Union. During the summer of 1937, Long was asked by another employee, one McManus, to sign an E. M. B. A. card reaffirming allegiance to that organization. He refused, explaining that he was not satisfied with his wages. About 2 days later Long's superior, one Cothran, asked him to sign one of the cards and again Long refused. About a day thereafter, while Long was at work, Beanie, guard and paymaster, directed Long to sign one of the cards, stating that he "would make it hard on" Long if Long refused. Long refused, whereupon Assistant General Super- intendent Cobb, who had been standing about 10 feet away, stepped DECISIONS AND ORDERS 111 up and said to Long : "Mr. Chisholm wants to see you at his office." Long went to an office which Mayor Chisholm, previously identified as an officer in the E. M. B. A., then occupied in an Earhngton building owned by the respondent. A number of other employees, who stated to Long that they had been sent there by Cobb, were awaiting Chisholm. They were addressed concerning the cards by ,Chisholm, who said "we didn't have to sign them if we didn't want to." The following morning Cobb demoted Long from his job in the shop, which he had held for about 10 years, to the picking table, which was dirtier and noisier work. Several days thereafter Beanie told Long that he would be reinstated to his former job if he would sign an E. M. B. A. card. Thereupon, Long signed a card and soon was working again in the shop. In replacing him at his old position, Cothran told him: "You can go back to your own job this morning provided you will be satisfied." Although the rate of pay in the car shop is higher than that at the picking table, Long's wages were not reduced. Cobb unconvincingly testified that he did not send Long to Chisholm. Further, Cobb's testimony that Long had been trans- ferred, and an employee from the picking table put in his place, so that the respondent could experiment on how to obtain more work in the shop, is also unconvincing. Cobb did not attempt to explain how an employee from the picking table could do better work in the shop than Long, who had had 10 years of experience. Cobb ad- mitted having seen Beanie circulating "some sort of cards" and talking with Long. AV. C. Phelps had an oral contract, without a definite period of duration, with the respondent; under which Phelps supplied ties to the mines. He began this work in December 193:1 and continued it until August 1937. Phelps had performed the work with his mules, but one of them died, and in August he employed a man named _McDonald, the owner of a truck, to haul the ties. McDonald hauled two loads which were accepted by the respondent, but the third load was refused with the explanation that Phelps had already supplied the amount periodically called for by the contract. Phelps disputed this explanation and Cobb replied: "McDonald can't haul ties in here for me . . . He was over here on that picket line and helped picket me and turned me around . . ." After finally telling Phelps to resume supplying ties, Cobb continued : ". . . don't get no union men to put them in." Thereafter Phelps employed a man named Greenie Gamblin to haul ties and several more loads were hauled until one evening when Phelps and Gamblin appeared at a Union mass meeting. The next morning Cobb, without explanation, refused to accept a load of ties hauled by Gamblin. Phelps has not sold any ties to the respondent since, and he has been informed by Andy Berry, an accountant for the respondent, that "There is no 112 NATIONAL LABOR RELATIONS BOARD use hanging around waiting for Ray Cobb because he told me he would never take any other ties from you." This discrimination against Phelps was not against him alone. Its effect necessarily was to demonstrate to the respondent's employees and to the community at large the respondent's antagonism toward the Union. Bishop Mallory, an employee at the North Diamond mine, occu- pied one of the respondent's houses in Earlington. He is a mem- her of'the Union, but has not been active in its behalf. Like other employees who were questioned on the subject, he is a member of the E. M. B. A. On July 14, 1937, James L. Dunlap, a field worker for the Union, called at Mallory's home where the two men talked on the' house porch. The next day Mallory was visited by Mayor Chisholm, Assistant Superintendent Cobb, and the latter's brother, Lindsay Cobb, who is assistant district mine inspector for the State of Kentucky. These three individuals drove to Mallory's home in an automobile and called to Mallory to come out. Mallory testi- fied that Chisholm, from his seat in the automobile, said: "Bishop, I understand you are having Jim Dunlap hang around your house to sign up men. If you continue to do that . . . you won't have any job to take care of your family." Cobb informed Mallory that a neighbor had advised Cobb of Dunlap's visit on the previous day. Several clays thereafter, Mallory told Dunlap to cease coming to his house. Chisholm was not a witness, nor was Lindsay Cobb. Ray Cobb testified that he and his brother were pleasure riding in Chisholm's new automobile and that he did not know they were going to Mallory's home. Cobb- stated that although he remained in the automobile he heard little of the conversation between Mallory and Chisholm, that Chisholm spoke about the E. M. B. A. cards, and that "I believe he (Chisholm) asked him if Dunlap had been by there." Cobb denied having told Mallory that a neighbor informed him of Dunlap's visit. The circumstances surrounding this inci- dent, and the testimony concerning it, warrant only that Mallory's version be believed. During the summer of 1937 Mallory signed an E. M. B. A. card which was presented to him by a fellow employee named Smith. Smith stated: ". . . You have to sign this card if you expect to hold your job . . . Complaints will be filed if you don't sign it ..." The respondent's activities in following Union organizers were not carried on solely by the guards. Superintendents Cobb and Jones also engaged in this practice. As stated above, Earl Suver, Union organizer, was followed by guards. On one occasion after April 1, 1937, he was accompanied by Arthur Chaney, a fellow organizer, on a visit to one of the camps. There they engaged in conversation with a group of employees at one of the houses. Shortly thereafter Cobb drove up in an automobile, whereupon most of the employees DECISIONS AND ORDERS 113 departed. Cobb remarked that he wanted to inspect the wallpaper in the house. Suver moved on to another house, where he endeavored to continue his organizational activities. Cobb came to the second house with the explanation that he wished to inspect the wiring, and Suver returned to the first house. By this time the presence of Cobb had caused all the employees but two to leave, yet Cobb followed them and Suver again to the first house where he told Suver that the employees were "satisfied" with the E. M. B. A. and that "these here hills are loaded with dynamite and car wheels hooked up with electric wire. All I have to do is push the switch in and it will go off." The following day Suver and Chaney were at another camp when Jones appeared. Two employees to whom they were talking de- parted. Suver acquainted Jones with the nature of his business, whereupon Jones stated that he would not order them to leave the property. Instead, following the practice outlined by President Richardson, Jones followed them throughout the afternoon from camp to camp and, whenever they attempted to engage in conversa- tion with employees, Jones, in the presence of the employees, made such remarks as, "There is no use talking to these negroes, they are satisfied with the E. M. B. A.," and "We are not going to let these fellows join that. We are satisfied with the E. M. B. A." The efforts of Suver and Chaney to elude Jones while driving from camp to camp were of no avail. He successfully followed them. Near the Fox Run and North Diamond mines the respondent maintains "guard towers." Whether they have been erected near the Coil mine is not stated, but Christian testified that he thought he gave orders for such towers to be erected there. These towers were erected about 1934 when the Union was engaged in picketing activities and apparently consist of boilers which have been cut in two and behind which armed persons can stand, using the towers or boilers as shields. Holes about 8 inches square have been pierced in them. At one time in June 1937 when Cobb directed Suver and Chaney to depart from a locality in which a tower was situated, Cobb stated, "We might have to use them again." Christian testified .as follows : Q. Mr. Christian, would it be, correct if I said the company maintained these guard towers today anticipating that you ,might have similar trouble in the future? A. Well, you can't tell. They are having it over in Davis County now. Q. The only people that the West Kentucky Coal Company had any trouble with is the United Mine Workers? A. That is the only ones that we ever had any trouble with. 114 NATIONAL LABOR RELATIONS BOARD Clearly, the guard towers are maintained for the purpose of intim- idating Union organizers. Whether they are maintained for any lawful purpose is not established in the record. We find that the respondent, by use of "guides" or "guards" or "watchmen" for the purposes above-described ; by the circulation of the petitions which "demanded" protection against Union organizers ; by the attendance of its guards and supervisory employees at Union mass meetings; by the acts of discrimination against Jack and Laura Campbell; by the demotion of Cozart and by other discriminatory acts directed against him, as well as by the various coercive state- ments made to him by Superintendent Christian and Foreman Wil- son; by the demotion of A. C. Long; by the discriminatory acts di- rected against W. C. Phelps ; by the threats made to Mallory by Mayor Chisholm; by the activities of Superintendents Cobb and Jones in following, interfering with, and threatening Union organizers; and by the maintenance of guard towers for the purpose of intimi- dating Union organizers, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges Carroll Williams 12 worked for the respondent intermittently over a period of 8 to 10 years. During May 1937 he joined the Union and thereafter engaged in organizational activity in its behalf. He was discharged on July 7 or 8. He had been working as a trip rider on the night shift at No. 8 mine. On the previous day, in the presence of Neil McCann, foreman at No. 8 mine, Superintendent Jones inquired of Williams if he had been persuading employees to join the Union and Williams admitted that he had. Thereupon, Jones told Williams to cease • talking about the union to the employ- ees, saying, "Well, Williams, your family can't help what you done. ... You better get out of that mess and go to work like a man."' Williams was not expected to work that night. Upon his return to work the following day he was told by McCann and Jones that he was not needed any longer. On the day after his discharge Williams went to see Wilcox in an effort to obtain reinstatement- He told Wilcox of the conversations with Jones and was told by Wilcox to "get the hell out of here." He was not reinstated. McCann, who had been discharged prior to the time of the hear- ing, was not called as it witness by the respondent to testify concern- ing Williams' discharge. Jones testified that Williams worked on' the night shift, that the day shift was producing better tonnage in the particular unit on which Williams worked, and that Williams' Incorrectly named in the complaint as Carrol Williams His name was corrected by- motion to conform. DECISIONS AND ORDERS 115 Union activities prevented systematic and efficient work in that unit. Further, Jones stated that he obtained this information from a fore- man, since deceased, and an electrician, and that his only reason for knowing that the faulty production was due to Williams was that production increased after Williams ceased work. Jones failed to inquire of the motorman with whom Williams worked as to the cause of the faulty production, nor was there any evidence that the coal loaders complained. The respondent also contends that Williams was not discharged, but that he voluntarily quit his job. As before related, we find that Williams was not supposed to work on the night prior to his alleged discharge. However, the respondent as- serts that he should have worked that night and that, because of his failure to do so, he was laid off for only a day, but was not dis- charged. The assertion is that Williams never appeared for work thereafter and thereby quit his job. This contention is utterly- unconvincing. Williams testified that his activity during working hours was con-. fined to talking with the employees. He denied to Jones that the ac-_ tivity interfered with his work. It is admitted by Jones that at that time the men were "considerably worked up over the thing, the ques- tion, of union, E. M. B. A. or whatever it shall be." Certainly the activity of Williams , was no more disruptive than that which others ,. employees were permitted by the respondent to engage in during working hours on behalf of the E. M. B. A. Wilcox did not discuss, Williams' case with the respondent `-because Carroll Williams indi- cated to me (Wilcox) that he wanted me to do something in order to help him perfect another organization and to tear down the, organization he had." Williams is one of the individuals who were followed by guards. On August 7, 1937, after the discharge, Omers and Mansfield halted, Williams as he was driving an automobile and, during the conversa- tion, Omers said: "You and this God damn Straudie Ratley (see- below) is always starting something around here. We are going to break this up." Upon all the evidence, we find that Williams was discriminatorily- discharged because of his membership in the Union and for engaging in Union activity of a sort which, if engaged in on behalf of the E. M. B. A., would have been permitted and welcomed by the re- spondent. At the time of his discharge, and for some time prior- thereto, Williams was earning from $48 to $52 each semi-monthly pay day. During the period from the time of his discharge to the time of the hearing, he had earned about $15 at irregular work on a farm. Straudie Ratley was discharged while employed at No. 2 mine, after having worked for the respondent for approximately 9 years.- 116 NATIONAL LABOR RELATIONS BOARD At some time prior to his discharge he had joined the Union and had become more active in its behalf than any other employee in the section of No. 2 mine in which he worked. The exact date of Ratley's discharge is not clear , although it is certain that the discharge occurred about July 1, 1937, during the period of intense Union activity in the summer. About 10 days before the discharge , Ratley was involved in a collision in the mine. The respondent asserts that the collision resulted from Ratley's negligence and that he was discharged for that reason. For some time prior to an illness in 1937 Ratley had operated a "main line" or regular motor, which obtained its energy from electricity and was used to pull coal cars on tracks within the mine. Upon his return to work subsequent to his illness, which was about 4 days prior to the date of the collision , Ratley commenced operating a "push out" or booster motor, which obtains its power from the same source and is operated on the same tracks as a regular motor. One of the purposes for which the booster motor is used is to push coal cars from point to point inside the mine. The collision occurred between the booster motor operated by Ratley, but to which no cars then were attached, and a regular motor operated by Hubbie Owens, to which were attached various empty cars. The two motors were operated on the same track and were proceeding deeper into the mine on a downgrade "straight-away" of approximately 1,300 feet in length. Ratley's motor was about 200 feet ahead of the regular motor, although it should have been 500 to 600 feet ahead, when a short circuit occurred in the booster motor, causing it to stop. A large are flare arose from the booster motor, causing this section of the mine to become more, illuminated than was usual by use of the electric bulbs then burning, and it is mani- fest that Owens clearly saw the booster motor ahead . The respond- ent contends that this short circuit was the fault of Ratley. There is a maze of testimony on this point, much of which is contradictory or unconvincing, and we are unable to determine whether it was -negligence on the part of Ratley which caused the short circuit or whether it was due to the fact that the booster motor was of an old model. Regardless of what may have been the cause of the short circuit, -we do not believe that the collision caii be attributed solely to negli- gence on the part of Ratley or that he was discharged because it occurred . It is clear from Owens ' testimony that the collision in all likelihood would not have occurred if Owens had not been traveling at an excessive rate of speed, yet Owens was not discharged. Owens was unable to stop the regular motor and it collided with the booster -motor, the latter being nearly completely demolished and resulting in a loss of about $320 . The regular motor, having been manu- DECISIONS AND ORDERS 117 factured of newer and stronger materials, was not substantially damaged. The respondent contends that the short circuit caused the collision. The facts do not support that contention. According to the respondent, Ratley was under instructions to keep ahead of Owens by at least 500 feet and the respondent relies heavily on the fact that Ratley was only about 200 feet ahead. H. B. Hinton, fore- man, testified that, although he could not be definite, he "would imagine" the motors travel "about seven or eight miles" an hour and "I doubt if they go that fast." He stated, further, that on a down- grade they would travel ". . . say 10, 12 miles an hour, something like that." Owens' testimony throws light on the controversy. Owens stated that he was approximately 200 feet behind Ratley when the short circuit occurred, that he (Owens) applied the brakes, and that the speed of the regular motor at that time was: A. I couldn't say exactly; somewhere around twenty, twenty-five miles an hour and that might be too fast and it might be too slow. I don't know. There is no way of gauging that speed down there. Q. Did your train slacken down any before you actually had this collision? A. Yes, sir. Q. How much did it slacken down to? A. It had.almost cone to a standstill. It was running five or six miles an hour maybe. * Q. So that it was as much your fault as it was Ratley's that you were not that distance (500 to 600 feet) behind him? A. I had instructions to turn it into the woods, to let it run. Q. In other words, you had to make time? A. I had to make time. Q. And that is the reason you were two hundred feet and not five or six hundred feet. It would have been all right if noth- ing happened but something did happen, is that it? A. Yes, sir. [Italics supplied.] The contention of the respondent that Ratley's negligence alone caused the collision is not supported by the evidence. Further, the testimony concerning events subsequent to the time of the collision serves to support the conclusion that the respondent, after due in- vestigation, was not inclined to attribute the collision to the alleged negligence of Batley and did not discharge him because of the col- lision. On the day the collision occurred, Superintendent Jones summoned all the motor operators to a meeting for the purpose of discussing it. The statements made at this meeting were recorded in 147841-39-vol 10--9 118 NATIONAL LABOR RELATIONS BOARD shorthand by a reporter brought to the meeting for that purpose. A transcript of these statements was not introduced in evidence by the respondent. At the meeting Jones did not accuse Ratley of respon- sibility for the collision. About 10 days thereafter Ratley was dis- charged. During this time he continued to operate a motor. At the hearing, Jones offered an explanation of this "delay" in discharging Ratley by saying that Superintendent Christian was out of town at the time of the meeting, that, "we would often give a man the benefit of the doubt," and that "I wanted to discuss the matter with Mr. Christian. I didn't want to do wrong, in other words, I wanted his view on that." Upon his return, Christian ordered the discharge of Ratley. Various facts, principally that the testimony does not show that the collision was due solely to a fault of Ratley ; that Ratley was not accused of responsibility at the meeting; that he was allowed to continue operating a motor thereafter; that Owens, whose member- ship in the Union was not known to the respondent, was not dis- charged or, so far as the record shows, even censured ; and that Jones admitted having a doubt about placing responsibility for the collision, all tend to show that Ratley was not discharged because of the collision. Moreover, it is clear that the respondent knew of Ratley's membership in the Union and his activity in its behalf. As before related, Wilcox, whom we have found to be a puppet of the respondent, testified that he had been informed that the Union had secured the membership of a majority of the employees in mines Nos. 2 and 8 and that, therefore, he began a campaign of intense F. M. •B. A. activity among these employees. Further, Ratley testi- fied that prior to his discharge he had a conversation with Superin- tendent Jones in which the latter inquired if he (Ratley) had been associating, with "the organizers" and advised Ratley that he should "stand by" the respondent. Jones denied this, but his denial is un- convincing when considered in the light of his testimony concerning other facts in this case. Upon being asked whether he had heard that Ratley was a member of the Union, Jones testified that he did not "remember whether I did or not," but admitted that he had seen Ratley in "the company of organizers once, possibly twice." Jones finally admitted that he saw Ratley attending a Union mass meeting after first stating, in response to a question of whether he had seen Ratley present, that "I seen lots of folks present there." The unwillingness of Jones to admit his knowledge of such matters does not place in a favorable light his asserted reason for having discharged Ratley. The uncontradicted testimony of Carroll Wil- liamsstands of record that Omers, guard and constable, and others, were "going to break up" the activity of Williams and Ratley. We conclude that the respondent utilized the collision as a cloak under DECISIONS AND ORDERS 119 which to conceal its real reason for discharging Ratley. We find that the respondent discharged Ratley because of his membership in the Union and his activities in its behalf. At the time of his discharge Ratley was earning $4.16 per day on each of 2 or 3 days per week. During the busy season, from September to April, he earned $45 to $50 each semi-monthly pay day. From the date of his discharge to the time of the hearing, he was not gainfully employed. Charlie R. Hayes 13 commenced working for the respondent in 1925 and, with the exception of about a year's time, worked continuously until his discharge about November 1, 1937. He was employed as a trip rider at Fox Run mine. He joined the Union in June 1937, and was active in its behalf. About August 18, 1937, he was ap- proached by Beanie, guard and paymaster, with the request that he sign an E. M. B. A. card, which he refused to do. Thereafter lie was directed by Superintendent Christian to sign an E. M. B. A. card. On various occasions Hayes accompanied a Union organizer named Steele, meeting Steele in Earlington where they could easily be seen together. Hayes also attended Union mass meetings and otherwise engaged in activity in its behalf. During September Hayes was granted a 30-day leave of absence by Superintendent Cobb. He did not overstay his leave, as contended by the respondent, and returned to work on October 4, when he was given a note addressed to Ermit Wyatt, foreman at Fox Run mine, entitling him to resume his employment. Sometime thereafter, about Novem- ber 1, Hayes was laid off by Wyatt after an argument in which both parties used profanity. At that time the operator of a motor was not at work and Hayes, having seniority, contended that he should be permitted to take the place of the absent operator. Wyatt told him that he had overstayed his leave of absence (which was not true) and therefore had lost his seniority. Wyatt assigned another employee to operate the motor. The use of profanity and the lay-off occurred at this point. Hayes, who asserted that profanity was used by Wyatt also, testified that ". . , He (Wyatt) said, `By God, you are the young- est one. Mr. Cobb says so and the books show it.' I told him lie was a damn lying son of a bitch, that I was not. And lie laid me off. . . . Wyatt testified that lie did not discharge Hayes, that he had merely laid Hayes off for a day because of the use of profanity, and that lie did not want to discharge Hayes because Hayes was indebted to the respondent. Several days later a "mine committee" endeavored to obtain Hayes' reinstatement. Thereafter, Hayes apologized to Wyatt for his profanity but, according to Wyatt, there were no vacancies at that time. is Incorrectly named in the complaint as Charlie R. Hays His name was corrected by motion to conform 120 NATIONAL LABOR RELATIONS BOARD It is unconvincingly asserted by Cobb that Hayes was not reinstated at the end of the day lay-off because Cobb directed Wyatt to discharge Hayes for disorderly conduct. Moreover, events subsequent to the lay-off of Hayes convince us that he was laid off for a day, but that the respondent thereafter decided not to reemploy him because of his membership in the Union and his activities in its behalf. Although denied by the respondent, it is clear that it knew of Hayes' interest in the Union prior to the lay-off. Further, it is clear that immediately after the lay-off, Hayes informed Ant Robertson, a subforeman and a brother-in-law of Wyatt, of his membership in the Union. On the day after the complaint in this proceeding was served upon the respondent, Superintendent Christian saw Hayes in a respondent- owned store in Earlington. Mayor Chisholm was present. Christian summoned Hayes and Chisholm to the respondent's office and there confronted Hayes with the complaint and interrogated him about his Union activities and the fact that he was named in the complaint as having been discriminatorily discharged. Christian then sent for Cobb and Wyatt. Christian's account of the conversation with Hayes is that the latter accepted responsibility for the discharge and called himself a "damn fool." Christian testified that Chisholm was called to the conference as a representative of Hayes and that Wyatt and Cobb were called to explain the discharge. On direct examination Christian asserted that his only knowledge of the matter before receiv- ing the complaint was that Hayes had once before made the statement about being a "damn fool." On cross-examination, Christian admitted having discussed the matter with Chisholm prior to service of the com- plaint. We do not regard the conversation which Christian, Chisholm, Cobb, and Wyatt had with Hayes in the trivial manner in which Christian endeavored to dismiss it, nor do we accept his version of it. According to Hayes, he was interrogated about the complaint and otherwise questioned for about an hour, during which Christian told him that he had been discharged for disorderly conduct and that " . . . we stood by you and . . . you didn't stood by us but the other union when they tried to organize here." Wyatt stated that "as near as I remember-I won't be positive," Christian asked Hayes about his membership in the Union. Although the use of profanity around the respondent's mines is apparently habitual, we do not dispute the right of an employer to discharge an employee for using such language as Hayes used to Wyatt. However, Wyatt testified that he did not discharge Hayes. Cobb testified that after the lay-off he told Wyatt to discharge him. Cobb and Christian, as witnesses, contradicted themselves and other- wise clearly indicated that they did not wish to give a clear and accu- rate account of Hayes' discharge. Also, Wyatt's memory was obvi- DECISIONS AND ORDERS 121 ously faulty as to the conversation they had with Hayes. We cannot reconcile these matters with the respondent's contention that Hayes was discharged for the use of profanity to his superior . Accord- ingly we conclude that, subsequent to the time Hayes was laid off, the respondent decided to avail itself of the lay-off and to make it per- manent because of Hayes' Union membership and activities in its behalf. We find that the respondent discharged Hayes because of his membership in the Union and his activities in its behalf. Hayes earned approximately $75.88 per month during the busy season and about $47 each month during the slow season. He had earned about $7 between the time of his discharge and the hearing . He was not gainfully employed at the time of the hearing. Mark Thomas Jenkins 14 began working for the respondent at some time prior to 1923. At the time of his discharge about July 27, 1937, he was working on the tipple at No. 8 mine . Prior thereto he had been engaged in various odd jobs, particularly laying track and build- ing brattice at the same mine. He joined the Union about July 1, 1937. While on the respondent 's property en route to work on the day he was discharged , Jenkins was told by Mansfield, a guard, to sign an E. M. B. A . card. Jenkins refused . Shortly thereafter Jenkins was informed by B. N. Farewell, tipple foreman that Super- intendent Jones had ordered that Jenkins was not to work on the tipple any longer. Jenkins called upon various supervisory em- ployees in an effort to obtain reinstatement , one of whom told him that he could load coal , which Jenkins declined to do. Also , Jenkins was sent by Superintendent Christian to Wilcox 's office. Wilcox, in the presence of Superintendent Jones, asked : "Mark, they told me you wouldn 't sign one of them cards ?" Jenkins replied that he would not, that "my conscience wouldn't let me. " Wilcox then stated : "The men that stuck to the E. M. B. A., to the company and the E. M. B. A. was the men that he stuck to." Jenkins then inquired of Jones if he would be reinstated and Jones replied that "I will look around and see what I can do. " Thereafter , Jenkins continued his efforts to obtain reinstatement and was informed by McCann, a foreman, that there were no vacancies and that he would be considered as an appli- cant for employment . Pursuant to McCann 's direction , Jenkins again went to Wilcox, who told him, "I don't consider you a member of the E. M. B. A. . . . You are not under my jurisdiction ." Jenkins replied that "I paid dues and assessments for fourteen years and if I wasn't a member of the E. M. B. A. I don't know who was . . ." Again, Superintendent Jones was present and again he said "he would keep his eye open and if anything turned up , why, he would" inform Jenkins. 14 Incorrectly named in the complaint as Mart Jenkins His name was corrected by motion to conform. 122 NATIONAL LABOR RELATIONS BOARD Jenkins was not advised during these conversations that his work on the tipple had been unsatisfactory. He was not cross-examined at the hearing by counsel for the respondent. One cannot escape the impression that Jenkins would have been reinstated if he had signed an E. M. B. A. card. The respondent asserts as a defense that Jenkins was removed from the tipple because of unsatisfactory work. Jenkins was one of seven men who worked on the tipple where he had been working for 3 or 4 weeks before his discharge. The respondent asserts that he was responsible for allowing unclean coal to be shipped to customers. Complaints concerning such coal had come in after Jenkins went to work on the tipple, and Farewell asserted that he ascertained that Jenkins was at fault because he occasionally loitered. However, there had been similar complaints before Jenkins went to work there. The respondent asserts that the complaints related to coal which was traced from the customers back to the particular tipple on which Jenkins worked. Even if this assertion be granted, the respondent did not establish that Jenkins, rather than any of his six fellow employees, was at fault. We find that the reason. given by the respondent for removing Jenkins is not sustained by the evidence. We further find that he was removed because of his Union membership and activity and that the job of coal loader which Jenkins declined to accept was not offered to him in good faith. Superintendent Jones admitted that after one passes the age of 50 years the ability to load coal dimin- ishes and that Jenkins' had passed that age. Further, loaders are paid by the ton. Jones was unable to say whether Jenkins had ever been employed as a regular coal loader, although he did state that "I think he loaded coal two or three months in 1936." Jenkins' re- fusal to sign an E. M. B. A. card was an admission of his interest in the Union, which interest was well known to the respondent. Jenkins did not surrender his right to his former job by refusing to accept a job as a coal loader. At the time of his discharge he was earning about $3.70 per day for 3 or more days per week. After his discharge he earned about $5 at temporary employment which ceased prior to the hearing. James R. Stokes began his employment with the respondent about 1924. He had worked at several of the respondent's mines prior to his discharge on July 24, 1937, at which time he was working as a mule driver at the respondent's Fox Run mine. On June 14, 1937, Stokes joined the Union. Thereafter he attended its mass meetings; accompanied Steele and Chaney, Union organizers; and conversed about the Union with employees at the mine. On July 24 Stokes was discharged by Wyatt, foreman, without explanation. Shortly thereafter on the same day Stokes saw Robert- DECISIONS AND ORDERS 123 son, his immediate foreman, who told him that his work had been satisfactory . Stokes was one of eight drivers of mules hauling coal cars in the mine. It was the duty of the drivers to haul the loaded cars to a specified place in the mine and to assist in distributing the empty cars to the loaders . The eight drivers work in rotation and 'the respondent asserts that Stokes was a slow worker, thereby delaying the other drivers and preventing the loaders from obtain- ing sufficient empty cars . The respondent sought to prove this con- tention by Wyatt's testimony that after Stokes had been replaced by another employee the tonnage of coal produced increased consid- erably. Although Wyatt testified that he watched Stokes for some time and concluded that Stokes was at fault , Wyatt never cautioned Stokes or urged him to perform his work more efficiently. Wyatt did not question any of the drivers or check their individual out- puts. He ascertained only the total tonnage of all the drivers. Further, Wyatt did not question any of the loaders, who are paid by the ton, to determine the cause of the alleged low production. None of the loaders or drivers ever complained to Wyatt. Wyatt had been Stokes ' foreman for 2 years, during which Stokes spent the majority of his time in loading coal, and apparently his work had been satis- factory for the large number of years he was an employee . In view of the facts that Stokes ' work was approved by Robertson , his im- mediate foreman ; that his work allegedly became unsatisfactory to other superiors only after he engaged in Union activities ; and that none of his fellow employees whose earnings were dependent upon efficient work by him ever complained , we conclude that Stokes was discharged because of his membership in the Union and his activities in its behalf. During the busy season Stokes earned from $50 to $70 semi-monthly. At other times he earned $20 to $28 semi -monthly. Subsequent to his discharge and prior to the hearing he earned about $45, but he was not employed at the time of the hearing. Albert Johnson 15 began working for the respondent in 1926. His work consisted of loading coal at No. 8 mine. On June 9, 1937 , he was laid off and was later given a transfer to No. 2 mine . Johnson con- tends that he was denied work at the latter mine. The respondent asserts that the entry in which Johnson worked in No. 8 mine was closed and that he was transferred to No. 2 mine . Hinton, foreman at that mine , testified that Johnson never appeared there for work. Subsequent to his discharge, Johnson pled guilty to a charge of tres- pass , having been arrested near the chicken house of another person. In his Intermediate Report, the Trial Examiner found that "A sub- 16 Incorrectly named in the complaint as Alfred Johnson. His name was' corrected by motion to conform. 124 NATIONAL LABOR RELATIONS BOARD stantial part of the testimony of Johnson is not worthy of belief." We find, as did the Trial Examiner, that Johnson never appeared at No. 2 mine for work pursuant to his transfer. We further find that the record does not support the allegations of the complaint that Johnson was discharged for Union membership or activity. Hiles Cannon had worked for the respondent intermittently since approximately 1910. His last term of employment began about 1931 and was interrupted in December 1936 by an illness. He resumed his employment at -No. 10 mine in the early part of 1937 and worked for only a short time. Cannon admits having informed Dr. Hum- phrey that, because of the state of his health, he did not want to work inside of a mine. He obtained E. M. B. A. sick benefits, and Wilcox offered to obtain for him a job as a janitor in a barber shop. Wilson, foreman at No. 10 mine, testified that Cannon resigned his job with the explanation that his physician had so directed and that, because his wife had a separate income, it was not necessary for, him to work. Counsel for the Board did not cross-examine Wilson on this point, nor was any evidence introduced to contradict the above testimony. Cannon joined the Union about June 1, 1937, after he had ceased working. Further, it does not appear that he was ever very active in its behalf. We find that the record does not sustain the allegations of the complaint that Cannon was discharged for Union membership or activity. George Hughes was not named in the original complaint but was added by amendment. On May 24, 1937, lie joined the Union. About June 26, 19377 lie was discharged because he had not adequately erected props in that part of the mine in which he worked. Through the efforts of the E. M. B. A. council, Hughes was reinstated in about a month. We find that the record does not support the allegations of the complaint that Hughes was discharged for Union membership or activity. Alfred Arnold was named in the complaint, but counsel for the Board introduced no evidence respecting his alleged discharge. The complaint will be dismissed without prejudice in so far as it alleges that the respondent engaged in unfair labor practices regarding Arnold. We find that Carroll Williams, Straudie Ratley, Charlie R. Hayes, Mark Thomas Jenkins, and James R. Stokes were discharged because of their membership in a labor organization and activities in its behalf, and that by their discharges the respondent has discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organization, and that by such acts the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. DECISIONS AND ORDERS 125 1). The refusal to bargain collectively 1. The appropriate unit The complaint and the petition both allege that the production employees of the respondent, exclusive of supervisory employees. at, mine No. 2 constitute a unit appropriate for, the purposes of collective, bargaining and that such employees at mine No. 8 also constitute a unit appropriate for the purposes of collective bargaining. On the other hand, the respondent claims that all its mines constitute a single appropriate unit. Mines Nos. 2 and 8 are the only mines operated by the respondent in Union County and are situated in or near the town of Sturgis. Although each of these mines has its own foreman, they have a com- mon superintendent. Mines Nos. 2. and 8 are considered a single oper- ating unit, are operated jointly, and have the same rescreening plant. The respondent's other mines are situated in various counties miles apart. All employees in the respondent's mines are unable, because of time and distance, to meet together. The Union has succeeded in organizing the employees at mines Nos. 2 and 8, in spite of determined resistance on the part of the respondent. Under the circumstances of this case, 'we see no reason why the employees at mines Nos. 2 and 8 should be denied representation until all the employees at all the respondent's mines have been organized.16 We conclude that the em- ployees at mines Nos. 2 and 8 together constitute a unit appropriate for the purposes of collective bargaining. Superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, and electricians with supervisory duties are ineligible for membership in the Union because of the supervisory nature of their duties. Such employees will be excluded from the appropriate bargaining unit. We will also exclude from the unit "guards" or "watchmen," who also are not eligible for membership in the Union. We find that all the respondent's production employees at mines Nos. 2 and 8, excluding superintendents, mine foremen, section fore- men, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees, and "guards" or "watchmen," constitute a unit appropriate for the purposes of col- lective bargaining and that said unit will insure to the respondent's employees the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 10 Matter of R. C. A. Communticattons, Inc. and American Radio Telegraphists' d ssocia• tion, 2 N. L. R. B. 1109. 126 NATIONAL LABOR RELATIONS BOARD 2. The efforts of the Union to bargain collectively The complaint alleges that on July 27 , 1937, and thereafter the re- spondent refused to bargain collectively with the Union as the ex- clusive representative of all the production employees at its No. 2 and its No. 8 mines. On the above -mentioned date Ed. J. Morgan, president of District 23 of the Union and known to Richardson , presi- dent of the respondent, to be its representative , mailed a registered letter to the respondent , addressed to the attention of Richardson, informing him that a majority of the employees at these two mines had selected the Union as their representative for the purposes of collective bargaining "as specified in the Wagner Labor Act" and requesting a conference . The respondent did not -reply. On No- vember 29, 1937 , Morgan again mailed a registered letter of the same'. nature to the respondent , addressed to the attention of Richardson. Again the respondent did not reply. In his testimony Richardson gave various reasons for not replying to the letters , particularly that the letters contained no proof of a majority and no credentials as to Morgan 's authority . As before related, he admitted having knowledge of Morgan's agency. The lack of consistency in his answers in this respect shows clearly that the above statements are merely excuses for his failure to reply. The real reason is evident in the testimony of Richardson that "He (Mor- gan) might have wanted to meet with me but I had nothing to meet him about." The record clearly establishes the respondent 's position to be that it will not recognize or deal with the Union even though it represents a majority of the employees in an appropriate unit and that it will not tolerate organizational activity by the Union. There remains the question of whether the Union represented a majority of the employees in the appropriate unit at the time the respondent refused to meet with the Union. Earl Suver , one of the Union's organizers , testified that he made a comparison of the Union's membership cards with the respondent 's pay rolls,'' and that this comparison showed that the Union had the membership of a major- ity of the employees in each of the two mines on the dates on which Morgan wrote to the respondent . However, the Union refrained from introducing documentary evidence of its designation by a majority of the employees because it believed that the disclosure of the names of its members would have resulted in further discharges . The Union was willing and desirous of submitting its membership cards to the Trial Examiner , the Board, or any other tribunal for comparison with the respondent 's pay roll and any authentic signature records the re- spondent might possess . The Trial Examiner refused to receive the 17 Board Exhibit No 2b. DECISIONS AND ORDERS .127 cards without according the respondent an opportunity to inspect them. The Union nevertheless refused to disclose the names of its members to the respondent. While the unfair labor practices of the respondent as disclosed by the record offer ample justification for the Union's precaution in not disclosing the names of its members, we are never- theless unable to find that the Union represented a majority of the employees at the time the respondent refused to meet with the Union. It is solely for this reason- that we do not find that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.18 V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order it to cease and desist therefrom. We will also order the respondent to offer full reinstatement to Carroll Wil- liams, Straudie Ratley, Charlie R. Hayes, Mark Thomas Jenkins, and James R. Stokes, and to make them whole for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum equal to the amount which lie normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 19 during such period. However, since the Trial Examiner dismissed the complaint, as amended, in so far as it alleged that the discharge of Mark Thomas Jenkins constituted an unfair labor practice, we will excl tide from the computation of his back pay the period from the date of the Inter- mediate Report, February 21, 1938, to the date of the Order herein. This is in accordance with our rule that the respondent could not have been expected to reinstate an employee after it received the Inter- mediate Report recommending the dismissal of the complaint as to him.20 ie See Matter of Clover Fork Coal Company, supra, footnote 1. '19 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N L. R B 440 20 Matter of E R. Haffelfinger Company, Inc and United Wall Paper Crafts of North America. Local No. 6, 1 N L R B . 760; Matter of National Weaving Company, Inc and Textile Workers Organizing Committee, 7 N. L R. B. 916. 128. NATIONAL LABOR RELATIONS BOARD Some of these employees, subsequent to their discharges, received monetary assistance from the Union in the form of loans or as relief payments. Any amounts so received are not to be considered in the computation of their net earnings.'-' Since the E. M. B. A. has been found to be a labor organization dominated and supported by the respondent, we will order the respondent to withdraw all recognition from it as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish it as such representative. The contract concerning wages, hours, and working conditions entered into between the respondent and the E. M. B. A., whether it be the contract in existence at the time of the hearing or whether another has been entered into subsequent to the hearing, is void and of no effect. We will order the respondent to cease giving effect thereto.22. As stated above, the E. M. B. A. has conducted sickness and death- benefit plans and has engaged in recreational or safety-first ven- tures. Therefore, our order requiring the respondent to disestablish it "as a collective bargaining representative is not intended to inter- fere with any such activities, provided that they are continued with- out discrimination against or in favor of any labor organization." 23 As stated above, the respondent has required E. M. B. A. members to contribute to the support of that organization by means of the check-off system. The amounts deducted from the wages of mem- bers were generally $1 per month for a married member and 75 cents per month for a member who was single, and approximated $2,200 per month in all. The record does not disclose whether any assessments were deducted from the wages of E. M. B. A. members. We are concerned only with the amounts deducted since July 5, 1935, the effective date of the Act. These dues were deducted without the approval or consent of the. E. M. B. A. members. One member, Spencer Johnson, who joined the Union in June 1937, was asked as a witness why he did not request the respondent to cease the E. M. B. A. check-off deductions from his wages. He stated : "Well, I figured the least I could say the better off I was." Even if the check-off was approved by the members, what we said in Matter of 21 Matter of Missouri-Arkansas Coach Lines, Inc. and The Brotherhood of Railroad Trainmen, 7 N. L R B 186. Cf also Matter of Vegetable Oil Products Company, Inc, a Corporation and Soap and Edible Oil Workers Union, Local No 18409, 5 N. L R. B 52; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N L R B 244. 22 Matter of Shellabarger Grain Products Company and Flour and Cereal Workers Union, No. 20765, 8 N. L R B. 336. 23 Matter of Utah Copper Company, a corporation, and Kennecott Copper Corporation, a corporation and International Union of Mine, Mill and Smelter Workers, Local No 392, 7 N L R. B 928. DECISIONS AND ORDERS 129 The Heller Brothers Company of Newconwrstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers 24 is appli- cable in the instant case . We there stated : It seems plain to us that the authorization by an employee for the check-off of dues owed to an organization which his employer has formed and continues to dominate cannot be con- sidered as having been voluntarily given by the employee. When check-off authorizations are sought under such conditions the employee is placed in the position of permitting the check-off or of putting himself squarely upon record as openly opposed to the Company 's wishes. No employee confronted with such an option can be regarded as having exercised free choice. Thus the same pressures by the respondent which compelled its em- ployees to abandon their free choice of representatives enforced their acquiescence in the check -off. Under these circumstances we will restore the status quo by ordering the respondent to reimburse its employees for amounts deducted from wages as clues for the Independent." Adapting the reasoning of the above-quoted paragraph to the facts in the instant case , we will order the respondent to make whole its employees individually for the full amounts deducted from their wages as E. M. B. A. dues and assessments , if any, since July 5, 1935. We also will order the respondent immediately to cease its use of the check-off in behalf of the E. M. B. A. We will also order that the respondent take other affirmative ac- tion which we find will effectuate the policies of the Act. We have found that the respondent refused to meet with a representative of the Union, after having been requested to do so on two occasions. The only reason for our not finding that the respondent refused to bargain collectively with the Union within the meaning of Section 8 (5) of the Act is that the evidence does not establish that the Union represented a majority of the employees in the appropriate unit. The evidence is insufficient in this respect because the Union feared to disclose the names of its members lest the respondent discharge them. The respondent's attitude toward the Union is one of pro- nounced and aggressive hostility. Its refusal to meet with the Union was absolute. We are convinced from the record that it was the respondent's intention not to bargain with the Union, whether or not it represented a majority of the employees , and that this inten- tion still persists. Since we are directing that an election be conducted among the employees in the appropriate unit to determine whether or not they ',7 N L R B 646 See also Matter, of Lone Star Bag and Bagging Company and Textile Workers Organi2ing Committee, supra , footnote 21 130 NATIONAL LABOR RELATIONS BOARD desire to be represented by the Union, and since the respondent is predisposed to commit unfair labor practices, we are of the opinion that the policies of the Act will best be effectuated by requiring the respondent to bargain 'collectively with the Union upon request, in the event that the Union is designated in the election by a majority -of the employees as their representative for purposes of collective bargaining, and is certified by this Board as the exclusive represent- ative of all employees in the appropriate unit for such purposes. We will so order. VI. THE QUESTION CONCERNING REPRESENTATION As found in Section III above, the respondent on two occasions -refused to meet with a representative of the Union or to recognize the Union for the purposes of collective bargaining. At the hearing the respondent questioned the claim of the Union that it represented a majority of the employees in an appropriate unit. We find that' a question has arisen concerning representation of the respondent's employees. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has' a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE DETERMINATION OF REPRESENTATIVES Earl Suver, an organizer for the Union, testified that the Union represents a majority of the employees in both mines Nos. 2 and S. However, no documentary evidence in support ' of this claim was introduced. We find that an election is necessary in order to deter- mine the question of representation which has arisen. As stated above in Section III A, it was stipulated by the parties at the hearing that the employees at mines Nos. 2 and 8, if called as witnesses, would testify that they desired to be represented for the purposes, of collective bargaining by the E. M. B. A. The stipulation is not material on the question concerning representation. Since we have found that the respondent has dominated and inter- fered with the administration of the E. M. B. A. and has contributed support thereto, the latter's name will not appear on the'ballot.22 26 Matter of M Lowenstein & Sons , Inc. and Bookkeepers ', Stenographers' and Account- ants ' Union, Local No. 16, United Office and Piofessioiial lhorl, ers of Ainorica, C I 0, et at 6 N L R B 216 DECISIONS AND ORDERS 131 We will not at this time fix a date for holding the election, but .will delay it until such time as we are satisfied that the effects of the respondent's unfair labor practices have been dissipated suffi- ,ciently to permit a free choice of representatives. At the time we direct such election we will determine the pay-roll date to be used in. ascertaining the eligibility of employees in the appropriate unit to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : - CONCLUSIONS OF LAW 1 United Mine Workers of America , District No. 23, and Em- ployes' Mutual Benefit Association , St. Bernard and Wesko Chap- ters, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of Em- ployes' Mutual Benefit Association , St. Bernard and Wesko Chapters, and by contributing financial and other support to that organiza- tion, the respondent has engaged in-and is engaging in unfair labor practices Within the meaning of Section 8 ( 2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Carroll Williams , Straudie Ratley, Charlie R. Hayes, Mark Thomas Jenkins, and James R. Stokes, and each of them, and thereby discouraging membership in a labor organization , the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( 3) of the Act. 4. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed iB Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( 1) of the Act. - 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the alleged discharges of Albert Johnson , Miles H. Cannon , and George Hughes. 7. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 8. A question affecting commerce has arisen concerning the repre- sentation of the respondent's employees within the meaning of Sec- tion 9 ( c) and Section 2 (6) and ( 7) of the Act. 9. All the respondent 's production employees at mines Nos . 2-and 8, excluding superintendents , mine foremen, section foremen, room bosses , face bosses , top bosses , entry bosses , electricians in a super- 132 NATIONAL LABOR, RELATIONS BOARD visory capacity, all" other supervisory employees, and "guards" or "watchmen," constitute a unit appropriate for the purposes of col- .lective bargaining within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, West Kentucky Coal Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Em- ployes' Mutual Benefit Association, St. Bernard and Wesko Chapters, or with the formation or administration of any other labor organiza- tion of its employees, and from contributing financial or other support to Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters, or any other labor organization of its employees; (b) Recognizing Employes' Mutual Benefit Association, St. Ber- nard and Wesko Chapters, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of work; (c) Giving effect to any contract it may have entered into with Employes' Mutual Benefit Association, St. Bernard and Wesko Chap- ters, concerning wages, hours, and working conditions, whether it be the contract in existence at the time of the hearing in this case ox whether another has been entered into subsequent to said hearing; (d) In any manner requiring its employees to contribute to the support of Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters, and in any manner making further deductions from the pay or wages of its employees, or any of them, for dues or fees payable, or to become payable, to that organization; (e) Discouraging membership in United Mine Workers of America, District No. 23, or any other labor organization of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment or by threat of such discrimination; (f) Maintaining surveillance of or employing any other means of espionage for the purpose of ascertaining and investigating the activi- ties of United Mine Workers of America and the activities of its em- ployees in connection with such organization or any other labor organization (g) Indicating to its employees the respondent's attitude and desires with respect to the relationship of its employees to any particular DEICISIO-INS AND ORDERS 133 labor organization, or indicating to its employees the respondent's judgment of union organizers or particular labor organizations, for the purpose of interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; • (h) Threatening to close any or all of its mines if its employees join any labor organization; (i) Denying to its employees who reside in houses owned by the respondent the right to have any persons call at their homes for the purpose of consulting, conferring or advising with, talking to, meeting, or assisting, the respondent's employees or any of them, in regard to the rights of said employees under the Act to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own-choosing, and to' engage in concerted activ- ities'for the purposes of collective -bargaining or other mutual aid or protection ; (j) Following or trailing any person, or in any other manner in- timidating or interfering with the right of any person, in his use of the thoroughfares in the towns and camps located within the coun- ties of Union, Webster, and Hopkins, Kentucky, for the purpose of consulting, conferring or advising with, talking to, meeting, or assist- ing, the respondent's employees or any of them, in regard to the rights of said employees under the Act to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of, their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion; (k) In any other manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters, as a representative of any of its employees for the purpose of dealing with the respond- ent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of work, and completely dis- establish Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters, as such representative; (b) Give no effect to any and all labor agreements, and any and all supplements thereto, which - have heretofore been entered into between the respondent and Employes' Mutual Benefit Association, 147S41-39-vo] 10--lo 134 NATIONAL LABOR RELATIONS BOARD St. Bernard and Wesko Chapters, the periods of duration of which have not heretofore expired; (c) Reimburse, individually and in full, all employees who were, or still are, members of Employes' Mutual Benefit Association, St. Bernard and Wesko Chapters, for all dues and assessments, if` any, which it has deducted from their wages, salaries, or other earnings since July 5, 1935, on behalf of Employes' Mutual Benefit Associa- tion, St. Bernard and Wesko Chapters; (d) Offer to Carroll Williams, Straudie Ratley, Charlie R. Hayes, Mark Thomas Jenkins, and James R. Stokes immediate and full reinstatement to their former positions, or to substantially equiva- lent positions in any of the mines operated by the respondent, without - prejudice to their seniority or other rights and privileges; (e) Make whole said Carroll Williams, Straudie Ratley, Charlie R. Hayes, and James R. Stokes for any losses of pay they have suffered by reason of their discharges, by payment to each of them respectively of a sum of money equal to that which each would nor- mally have earned as wages during the period from the date of his discharge to the date of such offer of reinstatement, less his net earn- ings 26 during said period, but not deducting any amounts said employees may have received during such period from United Mine Workers of America ; (f) Make whole said Mark Thomas Jenkins for any loss of pay he has suffered by reason of his discharge, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to February 21, 1938, the date of the Intermediate Report, and from the date of this Order to the date of such offer of reinstatement, less his net earnings 26 during said period, but not deducting any amounts said employee may have received_ during such periods from United Mine Workers of America; (g) In the event that United Mine Workers of America, District No. 23, is selected in the election hereinafter directed as the repre- sentative of the employees in the appropriate unit, and is thereafter certified by the Board as the exclusive representative of such em- ployees, then, upon request, bargain collectively with United Mine Workers of America, District No. 23, as the exclusive representative of all of the respondent's production employees at Mines Nos. 2 and 8, excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a super- visory capacity, all other supervisory employees, and "guards" or "watchmen," in respect to rates of pay, wages, hours of employment, or other conditions of employment; "See footnote 19. DECISIONS AND ORDERS 135 (h) Immediately post notices to all its employees in conspicuous places in and about its mining properties and, particularly, in and about ,each of its mines, tipples ,-resereening plants, car shops, stores, camps, and barge plants in Paducah, Kentucky, and maintain such notices for a period of at least sixty ( 60) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) to 1 (k), both inclusive, and-that it will take the affirmative action set forth in paragraphs 2 (a) to 2 (g), both in- clusive, of this Order; (i) Notify the Regional Director for the Eleventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby -is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 ( 3) of the Act by' discharging Albert Johnson, Miles H. Cannon, and George Hughes, and in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of J he Act. And it is further ordered that the complaint be, and it hereby is, dismissed without prejudice in so far as it alleges that the `respondent has engaged in unfair labor practices -within the mean- ing of Section 8 (3) of the Act by discharging Alfred Arnold. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat . 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that , in order to ascertain representatives for the pur- poses of collective bargaining with West Kentucky Coal Company, Sturgis, Kentucky , an election by secret ballot shall be conducted at such time as the Board will in the future direct , under the direction and supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III , Section 9 , of said Rules and Regu- lations , among all the respondent 's production employees at its mines Nos. 2 and 8 who were employed by the respondent within a period to be determined by the Board in the future , but excluding superin- tendents , mine foremen , section foremen , room bosses , face bosses, top bosses , entry bosses , electricians in a supervisory capacity, all other supervisory employees , and "guards" or "watchmen ," to deter- mine whether or not they desire to be represented by United Mine Workers of America, District No. 23, for the purposes of collective bargaining.